The Supreme Court has decided to examine whether social media intermediaries, such as Facebook and WhatsApp chats, should facilitate the state to access encrypted and private conversations of citizens, purportedly to fight crime and terror.

Context :

• The court is waiting for the Centre to notify the revised Information Technology Intermediaries Guidelines (Amendment) Rules.
• These Rules, said the government, were born out of the present-day need to usher in a stricter regime and more cooperation to combat the spread of pornography, sedition, hate, fake news, “anti-national activities and terror” online.

Who are Intermediaries?

Intermediaries are entities that store or transmit data on behalf of other persons, and include internet or telecom service providers, and online marketplaces.

Information Technology Intermediaries Guidelines (Amendment) Rules

Key Features:

• The Intermediary Guidelines Rules, 2011 require intermediaries to prohibit users from hosting certain content on its platform (e.g. obscene content).
• The Draft Rules prohibit a new category of information, i.e., content which threatens ‘public health or safety’.
• Intermediaries must, within 72 hours, provide assistance to any government agency. Further, they must enable tracing of the originator of the information on their platform.
• Intermediaries must deploy technology-based automated tools to identify and remove public access to unlawful information.
• Further, intermediaries with more than fifty lakh users must incorporate a company in India.

Key Issues and Analysis :

• Intermediaries are required to prohibit the publication of content that threatens public health or safety. This may violate the right to free speech under Article 19(1).
• Intermediaries are required to deploy automated tools for removing access to unlawful content. This may be contrary to the reasoning of a recent Supreme Court judgment.
• Intermediaries with more than fifty lakh users must incorporate a company in India. It is unclear as to how this number will be calculated.
• Therefore, an intermediary will find it difficult to determine if it is required to set up a company in India under this provision.

Related Supreme Court Orders :

• Tehseen S. Poonawalla(July 2018) SC gave the government full freedom to stop/curb the dissemination of “irresponsible and explosive messages on various social media platforms, which have a tendency to incite mob violence and lynching of any kind.”
• Re: Prajwala Letter case(December 2018) SC ordered the government to frame the necessary guidelines/Standard Operating Procedure (SOP) and implement them to “eliminate child pornography, rape and gang rape imagery, videos, and sites in content hosting platforms and other applications”.